LAUGHLIN & JENKINS

[2014] FamCA 646

FAMILY COURT OF AUSTRALIA

LAUGHLIN & JENKINS [2014] FamCA 646      

FAMILY LAW – Leave to commence proceedings for step-parent adoption – best interests – appointment of an independent children’s lawyer – conduct of proceedings in accordance with DIVISION 12A – need to keep legal costs to a minimum

APPLICANT: Mr and Ms Laughlin

RESPONDENT: Mr Jenkins

FILE NUMBER: MLC 4356 of 2014

DATE DELIVERED: 6 August 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 6 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Mr B Sayer,
TJ Mulvany & Co

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT

1. There be leave to file the affidavit of Mr Sayer sworn 6 August 2014 and the affidavit of service by the Child Support Agency sworn 4 July 2014 notwithstanding that the latter is not in the correct form.

2. This matter be listed before me on 8 October 2014 at 9.00 am for the purpose of hearing of the application filed 21 May 2014 on a final basis (“the final hearing”) estimated to take not more than one hour.

3. Pending the respondent filing a Notice of Address for Service to the contrary his address for service be email ...

4. Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children C born … 2001 and D born … 2005 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about leave being granted to the applicants to commence proceedings to adopt the said children and the final parenting orders and to enter into any negotiations with the father.

5. Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

6. Within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

7. My reasons for decision this day be transcribed and, when transcribed, be sent to the parties and the independent children’s lawyer.

IT IS DIRECTED THAT:

1. The minute of proposed consent order (not made) be marked Exhibit “A1” and remain on the Court file for the specific purpose of recording the matters referred to by the respondent father under the heading “ANNEX”.

2. In order to avoid unnecessary legal costs, if the parties agree that the final hearing ought to be adjourned, they be at liberty to contact my Associate – email … – and to request that the final hearing be adjourned to a subsequent date when I am available.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Laughlin & Jenkins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4356  of 2014

Mr and Ms Laughlin

Applicants

And

Mr Jenkins

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This matter comes before me in the Judicial Duty List. It is the application of Mr and Ms Laughlin for final parenting orders, change of name and for leave to commence adoption proceedings.

2. The application concerns the children C born in 2001 (“C”) and D born in 2005 (“D”) who are the biological children of Ms Laughlin and the respondent father, Mr Jenkins who were married in Country E in 2000, separated in 2005 and divorced on 27 July 2008.

3. The other applicant, Mr Laughlin, is the children’s step father having met the mother and children in 2008, commenced a relationship with the mother in early 2010 and married in 2012. That marriage is intact and there is a child of that marriage, F born in 2013.

4. The application was filed on 21 May 2014. In summary, the applicants seek:-

   a)They have shared parental responsibility for long term and day to day issues concerning the care, welfare and development of the children.

   b)The children live with them.

   c)The children’s family name be changed from “Morgan” to “Laughlin”.

   d)Leave be granted for proceedings to be commenced for the adoption of the children by Mr Laughlin.

5. On 27 June 2014 an order was made for substituted service of the application on the father via the Child Support Registrar. I understand that the father does not pay child support but service has been effected and I have granted leave for proof of service to be filed not withstanding that the affidavit is not in the correct form.

6. The application is very well prepared and presented by Mr Sayer but, for the reasons set out below, I will not determine the application today, I will request the appointment of an independent children’s lawyer and I will adjourn the application for hearing at a later date.

7. I have the benefit of Mr Sayer’s affidavit sworn 6 August 2014. On 28 July 2014 Mr Sayer contacted the father by email. On 30 July 2014, Mr Sayer was contacted by Forte Family Law who indicated “they may be receiving instructions in this matter” but he has not heard from that firm since. On 4 August 2014 the father contacted Mr Sayer, presumably by telephone, and said that he would consent to the parenting orders and change of names sought by the applicants. Mr Sayer told the father that, when the application came on for hearing today, he would also seek that the applicants be granted leave, pursuant to s 60G(1) of the Family Law Act 1975 (Cth) (“the Act”) for proceedings to be commenced for the adoption of the children by Mr Laughlin.

8. On 30 July 2014 Mr Sayer sent a proposed minute of order to the father for execution by him and return. On 5 August 2014 Mr Sayer received the minute signed by the father to which the father had added several clauses under the heading “ANNEX”. That document is now an exhibit. The additional clauses contemplate communication between the father and the children or the father and the applicants.

9. The first three orders sought by the applicants are parenting orders within the meaning of Pt VII of the Act. Section 60CA provides that in deciding whether to make a particular parenting order, a court must regard the best interests of a child as the paramount consideration.

10. Subsection 60G(2) of the Act requires me, on the application for grant of leave to adopt, to consider the children's best interests, having regard to the effect of various other sections of the Act which are specified. They are:-

    a)Section 60F(4)(a) which provides that, upon adoption, the children would cease to be a children of the marriage for the purposes of the Act.

    b)Section 61E which provides that, upon adoption, the children would cease to be children of the mother and the respondent for the purposes of this Act and the father’s statutory right pursuant to the Act to share the parental responsibility of the children with the first applicant would cease.

    c)Section 65J which provides that any parenting order to the benefit of the respondent as the biological father of the child would cease. In this context, I am not aware of any parenting order.

11. Parental responsibility is defined in s 61B as “all the rights, powers, responsibilities and authority which, by law, parents have in relation to children”.

12. Section 60CC provides how a court determines what is in a child’s best interests by requiring the court to consider two primary considerations and such of the 13 additional considerations as are relevant including:-

    a)The children’s views (s. 60CC(3)(a));

    b)The extent to which a parent has taken or failed to take the opportunity to participate in decisions about major long term issues in relation to the children, to spend time with the children and to communicate with the children (s. 60CC(3)(c));

    c)The extent to which a parent has fulfilled, or failed to fulfil, his/her obligations to maintain the children financially (s. 60CC(3)(ca)), and

    d)Any other fact or circumstance that the court thinks relevant (s. 60CC(3)(m)).

13. These are proceedings to which the Less Adversarial Trial provisions of Division 12A of Part VII of the Act apply. The principles for conducting child related proceedings are as follows:-[1]

    a)     The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

    b)    The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

    c)     The third principle is that the proceedings are to be conducted in a way that will safeguard the child concerned against family violence, child abuse and child neglect and the parties to the proceedings against family violence.

    d)    The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.

    e)     The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible. I am mindful that the applicants are represented and are incurring legal costs in the conduct of these proceedings. 

    [1] Family Law Act 1975 (Cth) s 69ZN.

14. The general duties[2] and the general duties and powers relating to evidence[3] expand the court’s role in the regulation of child related proceedings and, as may apply to this case, the court can receive hearsay evidence (s 69ZN(7).

    [2] Family Law Act 1975 (Cth) s 69ZQ.

    [3] Family Law Act 1975 (Cth) s 69ZX.

15. Where, as here, a child’s best interests are, or a child’s welfare is, the paramount or a relevant consideration and it appears to the court that the child’s interest in the proceedings ought to be independently represented, the court can order that the child’s interests are to be independently represented by a lawyer and make such other orders as are necessary to secure that representation.

16. The role of the independent children’s lawyer is to form an independent view, based on available evidence, of what is in the best interests of the children and then act in these proceedings in what she believes those best interests to be.[4] The independent children’s lawyer is not a legal representative retained by the children and is not bound by any instructions from them.[5] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the children are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for each of the children the trauma associated with proceedings[6] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[7]

    [4] Family Law Act 1975 (Cth) s 68LA(2).

    [5] Family Law Act 1975 (Cth) s 68LA(4).

    [6] Family Law Act 1975 (Cth) s 68LA(5)(d).

    [7] Family Law Act 1975 (Cth) s 68LA(5)(e).

17. In this case, I will request that Victoria Legal Aid appoint an independent children’s lawyer for C and D. Mr Sayer did not oppose this course.

18. It is routine for an independent children’s lawyer to consider the relief sought by way of parenting orders and change of name for the children. I envisage that the independent children’s lawyer will also try to ascertain the real intention behind the insertion by the respondent father, who is currently not legally represented, of the extra clauses into the minute of proposed order and what his attitude is to the applicants commencing proceedings which, if they succeed, will result in each of them (but not him) being a parent of the children.

19. I expect that the independent children’s lawyer will meet with C (13 years) and D (9 years) at a time and in circumstances which are not disruptive to them. The independent children’s lawyer may or may not be in a position to, or decide to, report to the court on the views of the children. Views are different to wishes. The independent children’s lawyer is not required to make specific enquiries or elicit the children’s ultimate preference or wish. This is consistent with the reference in the Revised Explanatory Memorandum[8] to this part of the Act which referred to consideration of a child’s views as allowing for a decision to be made in consultation with the child without the child having to make a decision or express a “wish”.[9] It is not my intention that the children be pressured or burdened. It is my intention that they feel as though they have been accorded respect by the Court and in the process which is before the Court.

    [8] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).

    [9] Ibid [56].

20. Any order made by this Court pursuant to s 60G is not an order for adoption.  It is only an indication to the State Court, in this case the County Court of C, that this Court sees no impediment in terms of the interests of the child and the legislation administered by this Court to the applicants making application to the other court to adopt the children with the potential consequence (if their application is granted) that the father will cease to have any of the duties, powers, responsibilities and authority in respect the children that he now has pursuant to s 61C.

21. If it is the case that the parties are not ready to proceed with  the matter on the adjourned date, the independent children’s lawyer may contact my Associate on behalf of all parties and arrange for an adjournment administratively.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 6 August 2014.

Associate: 

Date:  13 August 2014